Re Le and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 407

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 407

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/232

GENERAL ADMINISTRATIVE DIVISION		)
Re		Thanh Phong Le

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date6 May 2005  

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – visaex – on-shore visa cancellation – cancellation of transitional (permanent) visa on the grounds of a substantial criminal record – examination of the applicant’s criminal record including charges for supply of prohibited drug and steal motor vehicle – held that the applicant does have a substantial criminal record and accordingly fails the character test – discretion that the tribunal may exercise where the applicant fails the character test – examination of the applicant’s family situation in Australia and in Vietnam, work undertaken in prison, the applicant’s drug dependency – held the protection and expectations of the Australian community outweigh all other considerations – decision of the respondent affirmed.

Migration Act 1958 ss 499, 501, 501, 501(2), 501(6)(a), 501(6)(c)(i), 501(7)

Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

6 May 2005	Professor GD Walker, Deputy President
Summary

1.      The applicant, Thanh Phong Le, who is aged 35 and a citizen of Vietnam, first came to Australia with his eldest sister on 5 July 1989 at the age of 19.   On 1 September 1994, he was granted a transitional (permanent) visa.

2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that the applicant did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his past and present general conduct and because he has a substantial criminal record in Australia, including steal motor vehicle and supply prohibited drugs (two counts).  The respondent therefore cancelled the applicant’s transitional (permanent) visa.  This is the decision to be reviewed by the tribunal.

Background

3.      Mr Le was born in Vung Tau, Vietnam, on 21 February 1970 and is aged 35.  He is a citizen of Vietnam.  He first arrived in Australia on 5 July 1989, as the holder of a child migrant visa (G p22), with his eldest sister, at the age of 19.  He was granted permanent residence upon his arrival.  Prior to his arrival, Mr Le had worked in Vietnam as a fisherman.

4.      Between 1991 and 2004, Mr Le committed a large number of criminal offences (G8).  His criminal record (he has used 14 aliases), which is 20 pages long, includes the following:

Charge Date	Court	Offence	Sentence
19/2/1991	Lidcombe Local Court, 24/7/1991	Break enter and steal	Nine months minimum term, three months additional, pay witness expenses and compensation.
20/2/1991	Bankstown Local Court, 8/7/1991	Break enter and steal	Recognisance s558 self $1,000, good behaviour bond for three years.
8/1/1993	Fairfield Local Court, 25/2/1993	1.Supply prohibited drug 1.Possess prohibited drug 2.Goods in custody	1. Minimum term four months from 9/2/1993, additional term two months. 1. and 2. On each charge adjourned generally.
23/1/1993	Fairfield Local Court, 25/2/1993	1.Offer to supply prohibited drug (heroin)	Minimum term six months, additional term two months.
26/1/1993	Fairfield Local Court, 25/2/1993	1.Possess prohibited substance	Minimum term six months, additional term two months.
26/1/1993	Fairfield Local Court, 25/2/1993	1.Possess prohibited drug (heroin)	Minimum term six months from 9/2/1993 additional term two months.
9/2/1993	Fairfield Local Court, 25/2/1993	1.Supply prohibited drug 2.Possess prohibited drug	1. and 2. On each charge minimum term six months additional term two months. 1. and 2. On each charge minimum term six months additional term two months.
1/2/1994	Fairfield Local Court, 9/2/1994	1.Supply prohibited drug (two counts) 1.Possess prohibited drug 2. Goods in custody	1. On each count 12 months imprisonment. 1. and 2. On each count adjourned generally.
30/11/1995	Newtown Local Court, 18/4/1996	1. Stealing 2.Stealing (three counts)	1. Recognisance s558 self $800, good behaviour 12 months. 2. On each count recognisance $800 good behaviour 12 months, supervision NSW Probation Service.
12/2/1996	Burwood Local Court, 24/7/1996	Break enter and steal	Fixed term six months
31/5/1996	Burwood Local Court, 24/7/1996	1.Goods in custody 2.Possess prohibited drug	1.Fixed term one month. 2.Fixed term six months.
1/2/1997	Burwood Local Court, 10/2/1997	1.Stealing 2.Goods in custody 3.Stealing	1.2.3. Fixed term one month on each conviction.
25/12/1997	Central Local Court, 13/11/1998	Possess prohibited drug	Recognisance s558 $300, three years.
6/1/1998	Kogarah Local Court, 5/5/1998	1.Possess prohibited drug 2.Possession of equipment for administering prohibited drug	1. and 2. Rising of the court.
18/1/1998	Downing Centre Local Court, 13/11/1998	1. Larceny 2.Carry cutting weapon upon apprehension	1. and 2. Recognisance s558, $300 three years supervision NSW Probation Service, obey all reasonable directions.
13/4/1998	Kogarah Local Court, 5/5/1998	1.Carry cutting weapon (first instance warrant) 2. Larceny (first instance warrant) 3.Possess prohibited drug (cannabis leaf) (first instance warrant)	1. and 2. Fixed term three months. 3. Rising of the court.
22/9/1998	Central Local Court, 13/11/1998	1.Goods in custody reasonably suspected of being stolen 2.Possess prohibited drug 3.Supply prohibited drug	1. 2. and 3. Fixed term four months on each offence to be served concurrently commencing 22/9/1998 concluding 21/1/1999.
21/1/1999	Sydney District Court, 16/11/1999	1.Break and enter building commit felony (steal) 2.Malicious Damage (first instance warrant from Kogarah Local Court)	1.Appeal against conviction – conviction confirmed: in lieu fixed term four months commencing 19/8/1999 concluding 18/12/1999. 2.Appeal against conviction – conviction quashed.
18/12/1999	Parramatta Local Court, 4/1/2000	Goods in personal custody reasonably suspected being stolen.	Fixed term three months commencing 18/12/1999.
22/3/2000	Sydney District Court, 22/6/2000	Steal motor vehicle	Appeal against conviction – conviction confirmed: in lieu imprisonment: 12 months commencing 21/3/2000 non-parole period with conditions nine months commencing 21/3/2000 concluding 20/12/2000 release subject to supervision.
12/1/2001	Downing Centre Local Court, 26/6/2001	Steal/misappropriate/destroy or conceal postal articles (2 counts)	Imprisonment 14 days commencing 26/6/2001 concluding 9/7/2001.
9/3/2002	Sydney District Court, 2/5/2003	Larceny	Six months imprisonment confirmed, sentence to commence 2/2/2003.
23/12/2002	Downing Centre Local Court, 19/2/2003	1.Possess prohibited drug 2.Unlawfully possess etc a prescribed restricted substance 3.Actual possession of forged prescription (4 counts) 4.Custody of knife in public place 5.Goods in personal custody suspected of being stolen (not m/v)	1. – 4. Convicted s25(2) warrant to issue.
5/3/2003	Central Local Court, 2/4/2003, Bail refused	1.Larceny (first instance warrant) 2.Possess prohibited drug (first instance warrant) 3.Unlawfully possess etc a prescribed restricted substance (first instance warrant) 4.Custody of knife in public place (first instance warrant) 5.Goods in personal custody reasonably suspected of being stole (not m/v) (first instance warrant) 6.Larceny (first instance warrant) 7.Maliciously destroy or damage property (two counts) 8.Actual possession of forged prescription (four counts) (first instance warrant) 9.Goods in personal custody suspected being stolen (not m/v) (first instance warrant) (two counts) 10. Warrant for apprehension – fail to appear to prosecute appeal (first instance warrant)	1. Imprisonment six months commencing 5/3/2003. 2.3.4. and 5. One month imprisonment commencing 5/3/2003 on each count. 6.7.8. and 9. Imprisonment three months commencing 5/3/2003 on each count.
7/11/2003	Liverpool Local Court, 20/5/2004	1.Supply regulated goods in public street 2.Goods in custody suspected of being stolen (not m/v)	1.Fine$100, court costs $61. 2.Imprisonment: three months suspended on enter bond s12: three months supervision NSW Probation Service to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Liverpool Probation Office within 24 hours.
7/11/2003	Liverpool Local Court, 26/7/2004	Goods in personal custody suspected of being stolen (not m/v)	(Call up) imprisonment three months commencing 15/7/2004.
15/7/2004	Liverpool Local Court, 26/7/2004	1.Possess forged prescription 2.Utter forged/altered prescription.	1.Imprisonment three months commencing 15/7/2004. 2.Imprisonment three months commencing 15/7/2004.

5.      Mr Le also had the following convictions recorded against him while imprisoned:

Hearing date           Offence (Sentence and Compensation)

22/11/2000               Possess drug implement – 14 days off contact visits

12/12/1999Drugs in urine s 25(4)(A) – 42 days off contact visits (Drugs in urine only)

21/11/1999Fighting – one day cells

1/6/1998Threatening behaviour – three days cells

14/10/1996Drugs in urine s 25(4)(A) – 28 days sup – off contact visits

11/12/1994Drugs in urine s 25(4)(A) – 42 days sup – off other amenities

4/4/1994Not comply PO 163/2 or 100F2 – sup – prisoner given reprimand and caution.

6. On 24 July 1991, at the Lidcombe Local Court, Mr Le was convicted of break enter and steal and sentenced to a minimum term of nine months with an additional term of three months. He had been a permanent resident for one year and seven months when he committed this offence (G p18). On 21 March 1992, a delegate of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) decided to warn Mr Le that he might be liable for deportation under s 200 of the Migration Act 1958 (“the Act”) (G5).  Mr Le was informed of this decision on 10 April 1992 and signed a formal acknowledgement of this advice on the same day (G p21).

7.      On 9 February 1994, at Fairfield Local Court, Mr Le was convicted of supply prohibited drug (two counts) and sentenced on each count to a fixed term of imprisonment of 12 months.   On 13 April 1994, a delegate of DIMIA wrote to the applicant advising him that the Minister or his delegate was considering cancelling his visa.  On 23 September 1994, the applicant was interviewed by a DIMIA officer and made submissions on his behalf as to why his visa should not be cancelled.  On 3 November 1994, a delegate of DIMIA notified Mr Le that a decision had been made not to cancel his visa but issuing his second warning (G7).  Mr Le acknowledged receipt of the warning on 15 November 1994 (G p85).

8.      On 2 May 2000, the Sutherland Local Court convicted Mr Le of steal motor vehicle and sentenced him to a fixed term of imprisonment of 12 months.  He appealed against that conviction.   On 22 June 2000, the Sydney District Court confirmed the conviction, in lieu sentenced him to 12 months imprisonment with a non-parole period, with conditions, of nine months, his release to be subject to supervision.  On 9 October 2002, DIMIA again wrote to the applicant informing him that the Minister or his delegate would be considering whether there were grounds to cancel his visa.

9.      On 3 September 2004, an officer of the New South Wales Compliance Cancellations Section of DIMIA informed Mr Le that the Minister was considering cancelling his transitional (permanent) visa because of his substantial criminal record and his past and present conduct and inviting him to comment by 24 September 2004 (G10).  She also informed him that in making the decision, the Minister or his delegate would be taking into account his criminal history including convictions and sentences and the previous two warnings issued to him.   Mr Le acknowledged receipt of this letter on 17 September 2004 (G11).   No submissions were lodged by Mr Le or members of his family.

10. On 24 January 2005, a delegate of the respondent decided to cancel Mr Le’s transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1 and G10). On 21 February 2005, Mr Le lodged an application for a review of this decision by the tribunal.

11.     On 21 February 2005, Mr Le was detained at the Villawood Immigration Detention Centre, New South Wales.

12. At the hearing, the applicant appeared in person and the respondent was represented by Timothy Webb, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Mr Le gave oral evidence in person.

Relevant Law and Policy

13. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more” (c) or “the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more” (d).

14. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

15. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

17. In the present case, Mr Le does not pass the character test because of his “substantial criminal record”, having received on 24 July 1991, a minimum term of imprisonment of nine months with an additional term of three months for break enter and steal; on 9 February 1994, a fixed term of imprisonment of 12 months for supply prohibited drug (two counts); and on 2 May 2000, a fixed term of imprisonment of 12 months for steal motor vehicle, the conviction being confirmed on 22 June 2000, in lieu sentenced to 12 months imprisonment with a non-parole period with conditions of nine months. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Le’s visa.

Evidence

18.     The applicant gave oral evidence with the assistance of a Vietnamese interpreter.  He also filed with the tribunal prior to the hearing a letter (Exhibit A3) which stated inter alia:

I know [sic] recognise the mistake that I have made, for example being Narcotics, which has ask [sic] being influenced by my friends, and taking narcotics which has also lead [sic] me to a life in crime, stealing and robbing from people of the public so that could support my addictions.

These habits have left me with no dreams and hopes for a good life, instead I was more concern [sic] with when I would get my next fix and how I was going to get it. This was also the reason why I couldn’t function as a normal person and hold down a job.

19.     In oral evidence he did not dispute his criminal record, saying that there was nothing he could say about it, nor did he deny receiving two formal warnings from the Department, one in 1992 and one in 1994, that made it clear that the commission of any further offences would make him liable to cancellation of his visa and removal from Australia.  He said that for the past two months, while in Villawood Detention Centre, he has ceased taking methadone and that he is instead being prescribed a less powerful drug, the name of which he pronounced “Sipotek” (I was unable to locate that name in The Australian Drug Guide but the problem may lie in Mr Le’s pronunciation).  He has told his prescribing doctor that he would like to reduce his dosage of that medication after the hearing, and the doctor has agreed. 

20.     The applicant was emphatic that he had not been involved with heroin dealing or possession since commencing his first methadone program in 1994.  When reminded that in Exhibit A3 he had said that his offences of stealing and housebreaking stemmed from his need to “support my addictions”, he replied that he had been taking too many prescribed tablets which so affected him that he did not know what he was doing.  He had stolen in order to buy marijuana and pills, not heroin or cocaine, although when pressed he admitted taking heroin “once or twice” during that period.  He further explained that he had suffered brain damage as a result of being struck by a train at Town Hall station in 1995.  That injury, he said, caused him to do “wrong things”, for which he now apologised.  At no time, however, had he received any psychiatric treatment.  

21.     He did not, however, mention the head injury or its claimed consequences in his April 2005 letter to the tribunal (Exhibit A3), nor did his sisters mention it in their letter of support to the tribunal dated 11 April 2005 (Exhibit A2).  Nevertheless, there is some corroboration for his account in a short extract from the transcript of evidence that precedes the Magistrate’s sentencing comments on his conviction for stealing a motor vehicle at Sutherland Local Court on 2 May 2000 (Exhibit R2).  In that extract the following exchange appears (at p58):

Q.       Now you were on medication that night were you?

A.        Yep.

Q.       What sort of medication?

A.        The medication the name is Rivotril for fits.

Q.       How does that affect you?

A.        That stuff for only when people they got fitting attack.  Only for fitting attack.

…

BENCH: Q.     You suffer from epilepsy do you?

A.        Yes.

The learned magistrate referred to that exchange in his sentencing comments (at p61):

He says he was taking Rivotril for epilepsy, well that is not going to make you drowsy to the point of obvious affectation.

22.     It appears that epilepsy can be caused by a head injury: AJ Buzzard et al., Medicine and Surgery for Lawyers, Second Edition, LBC Information Services, North Ryde, NSW, 1996, p16.  Rivotril is a drug prescribed for the treatment of epilepsy:  J Upfal, The Australian Drug Guide, Sixth Edition, Schwartz Publishing Pty Ltd, Melbourne, 2003, pp164-166. 

23.     At the trial for car stealing, the applicant mentioned his medication only in order to explain his presence at Hurstville, where the offence took place, at the relevant time.  He said he was there because he was planning to see a doctor in connection with his medication (Exhibit R2 p61).  He did not suggest that his medication caused him to be unaware of what he was doing or that it was wrong, nor did he so suggest in Exhibit A3, or in any other context, until he was in cross-examination at the hearing before the tribunal. 

24.     If he was under medication for at least five years after the train accident, one would expect that if he displayed any signs of unawareness of what he was doing, or any other symptoms of a psychiatric disorder, that he would have been referred for psychiatric treatment.  Yet he said categorically that he has never undergone any such treatment.  The sentencing magistrate was in no doubt about Mr Le’s problem:

I looked at your record, Mr Le, and quite frankly you’re a crime looking for a place to happen.  You have been in and out of gaol one month, six months, four months, here last year larcenies at Burwood, one month break enter steal Burwood 1996, six months, 1998 at Kogarah, larceny three months, Central 1998 larceny four months, shop lifting at Central 1999 six months, plus a whole range of goods in custody offences and drug offences.  You just quite clearly haven’t got the message. (Exhibit R2 pp65-66).

25.     As his Honour observed, the applicant’s criminal record showed a long-standing pattern of law-breaking.  There appears to be no significant change in the pattern after 1995, the year of the alleged head injury.  My conclusion on this point is that while Mr Le probably did suffer a head injury in 1995 causing brain damage and epilepsy, for which medication was prescribed, neither the injury nor the medication was responsible for the continuance of his pattern of regular law-breaking.  In my view that explanation is a recent invention for the purposes of the tribunal hearing.

26.     As regards discretionary factors, the evidence showed that Mr Le is unmarried, is not in any marriage-like relationship, and has no children.  He has three sisters in Australia, and although for a time he distanced himself from them, he has resumed contact with them and is particularly close to his elder sister, Thi Hong Pham, with whom he originally came to Australia.  He has a number of uncles and aunts in Vietnam, mainly in Vung Tau, and some in Ho Chi Minh City.  He says he does not know their present whereabouts, and does not know some of them at all.  But his sisters in their letter of support did not mention any lack of family contacts in Vietnam as a hardship factor in his case. 

27.     Mr Le came to Australia at the age of 19.  In Vietnam he had attended primary school, and high school up to the age of 14, and can speak, read and write Vietnamese.  He also has a basic competence in spoken and written English.  He lacks any formal qualifications, however. 

28.     From the age of 14 until he migrated to Australia, he worked as a fisherman with one of his uncles in Vietnam.  In Australia, he was employed for two periods totalling something under two years at a galvanizing plant.  While in prison he has not undertaken any vocational courses, but worked in the metal workshop doing painting and welding (oxy-acetlyene and arc).  He also worked in the carpentry shop making furniture, and in the nursery at Long Bay.  Corrections officials described him as a good worker, though not distinguished by any special talents.  As a prisoner, he had several minor disciplinary infringements recorded, but on the whole was quiet and tractable.  Four of his prison charges related to drugs, the latest of those being in November 2000. 

29.     The applicant contends that he has never committed any really serious crimes, such as bank robbery, and that if allowed to remain in Australia he will become a new person, behave and respect the law, if he is only given a second chance.  In fact, however, he had his second chance back in 1994 when he received his second written warning from the respondent, that one being in particularly emphatic language.  He forfeited that chance through his own misconduct, and many others in the intervening years each time he re-offended.

Application of the Law and Findings of Fact

30. As was stated above, there is no dispute, and I find accordingly, that Mr Le does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment where the total of these terms is two years or more. As stated above, he has also been convicted of a number of offences and sentenced to imprisonment where the total of those terms is two years or more.

31. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Le’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

32.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

33.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraphs (a) the selling of illicit drugs and (n) any other crimes involving violence or the threat of violence.  Paragraph 2.7(a) also states that the decision-maker should have regard to “the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence”.

34.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

Protection of the Australian Community

35.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.   In this case, the applicant has acquired a lengthy criminal record since 1991, less than two years after he arrived in Australia.  His record includes terms of imprisonment for break enter and steal, being in possession of stolen property, larceny, and maliciously damaging property.  He also has a large number of convictions relating to the possession of prohibited drugs and supply of prohibited drugs, including heroin.  Paragraph 2.6 of the direction also states that drug dealing offences are to be treated as very serious.  He also has four offences relating to drugs recorded against him while in prison.

36.     Next, the tribunal is to consider the risk of recidivism.  The applicant is a repeat offender who has regularly been before the courts since 1991 at the age of 19 and received his first prison sentence at the age of 21.  He is now aged 35.  He has participated in at least two methadone programs.  Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.  On that criterion alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future.  

37.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa“ (Direction No 21 paragraph 2.11).   Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity.

Expectations of the Australian Community

38.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

39.     The applicant has engaged in continuous criminal conduct since 1991 up until July 2004.  He continued to break the law even after being given his first deportation warning on 10 April 1992 and his second deportation warning on 15 November 1994.  In my view the Australian community would expect that a person who comes to Australia, starts to commit serious offences less than two years after his arrival, and builds up over an unbroken 13-year period a 20 page criminal record, is sentenced to more than 30 terms of imprisonment and disregards severe warnings about the risk of visa cancellation should he re-offend, has forfeited any right to remain in Australia.

40.     The community has the right to expect that persons allowed to settle in this country will not make themselves into a public menace and a burden on the criminal justice system and the public purse.  For several decades after World War II, studies consistently showed that immigration did not aggravate Australia’s crime problems. The migrant population overall had a lower crime rate than the Australian-born and recognition of that fact helped to maintain support for the immigration program.  In recent times, however, the position has changed.  It is now the case that the percentage of the population who were born abroad exerts a significant positive impact on crime rates, and that there is in fact “an important link between immigration, demography and crime”  (it may be noted that Aboriginal origin, on the other hand, is not significantly correlated with criminal activity): PM Bodman, “Crime, Punishment and Deterrence in Australia: A Further Empirical Investigation” (1997) 24 International Journal of Social Economics pp 884, 895, 897.  Failure to give adequate weight to community expectations in cases such as this one could tend to undermine public support for the immigration program. 

The Best Interests of the Child      

41. There is no evidence that the applicant has any children who would be affected by a decision under s 501(2) of the Act.

Other Considerations

42. Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision. The relevant ones in this case are those in paragraph 2.17 (a), (c), (d), (h) and (k). The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen and the fourth relates to any evidence or rehabilitation and any recent good conduct. Paragraph 2.17(k) states the decision-maker must consider “the fact that a non-citizen has been formally advised in the past by an officer of the Department … about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501”. Apart from his expression of intention and his participation in two or more methadone programs, there is little evidence of rehabilitation.

43.     The applicant’s mother, father and step-father are all deceased.  He has three sisters residing in Sydney, Thi Sen Pham, Thi Hong Pham and Thi Bich Phuong Pham (known as Jessica Pham), who are not dependent on him but would suffer emotional distress if he were removed from Australia.  He has a brother living in Germany.  He also has aunts and uncles living in Vietnam.  In their written submission to the tribunal dated 11 April 2005 (Exhibit A2), his sisters Sen Pham, Hong Pham and Jessica Pham stated that if their brother were allowed to remain in Australia, they would do all in their power to take care of him and to help him start a new life in Australia.  Their interest in his welfare has not, however, prevented him from reoffending in the past.  On the other hand, he has uncles and aunts still in Vietnam, and while he says that he has had no recent contact with them and is unaware of their whereabouts, nothing in the evidence suggests that there is any obstacle to his making enquiries with a view to re-establishing contact with them.  His sisters would face no special obstacles in visiting him in Vietnam and could offer some modest assistance to him in becoming established there.  While he has no formal qualifications, he has a variety of work experience and skills, is willing and able to work hard and can read and write Vietnamese.  His basic English skills would also help him to find employment, and Vietnam’s economy is reportedly growing at present.  Nevertheless he is likely to suffer some hardship in readjusting to life in Vietnam.

44.     Consideration must also be given to the applicant’s state of health. In a written submission to the tribunal, his sisters stated that “out [sic] brother is in a bad condition health wise and medically.  Furthermore he is currently addicted to heroin and is undergoing a methodone [sic] program to try his best to get off the drug …” (Exhibit A2).  No medical evidence to support that statement was presented to the tribunal, however, nor was his condition elaborated upon in their submissions.  At the hearing Mr Le said that he had come off methadone some two months earlier and was now taking a less powerful medication.  His doctor has said that he can reduce his dosage of that drug after the hearing.  Mr Le did not mention a continuing need to take medicine for epilepsy, so presumably he has substantially recovered from that condition.

45.     Having weighed up the primary and other considerations, I find that the primary factor of community protection and community expectations outweigh the other considerations in this case.  In my view the decision under review should be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  2  May 2005
Date of Decision  6 May 2005
Solicitor for the Applicant          Unrepresented
Solicitor for the Respondent     Mr T Webb, Clayton Utz, solicitors